Lees v. Casorso, 2012 NSSC 301

SUPREME COURT OF NOVA SCOTIA Citation: Lees v. Casorso , 2012 NSSC 301 Date: 20120808 Docket: Pic No. 287028 Registry: Pictou Between: Gerald Trevor Lees Plaintiff v. Robert Casorso Defendant LIBRARY HEADING Judge : The Honourable Justice N.M. (Nick) Scaravelli Heard: August 2, 2012 in Pictou, Nova Scotia Written Decision: August 8, 2012 Subject: Motions re admissibility of expert reports.

Summary: Plaintiff motions (1) to exclude defence expert report of the orthopaedic surgeon on the grounds that no opinion was provided and exhibits bias; (2) to exclude a portion of the defence psychiatric report on grounds that expert comments on origin of symptoms are not objective and are speculative. Defence motion to exclude a portion of the plaintiff’s psychiatric report on grounds that opinion on origin of symptoms is outside of the expertise and usurps the fact-finding function of the court. Result: Plaintiff motions dismissed. Defence motion allowed. Portion of plaintiff’s psychiatric report redacted.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . IN THE SUPREME COURT OF NOVA SCOTIA Citation: Lees v. Casorso , 2012 NSSC 301 Date: 20120808 Docket: Pic No. 287028 Registry: Pictou Between: Gerald Trevor Lees Plaintiff - and - Robert Casorso Defendant Judge: The Honourable Justice N.M. Scaravelli Heard: August 2, 2012, Pictou, Nova Scotia Counsel: Nicolle Snow, for the plaintiff Alison Bird on behalf of Kevin Latimer, Q.C., for the defendant By the Court :

[1] This motion involves the admissibility of expert reports. The plaintiff objects to the admissibility of the report of thedefendant’s expert, Dr. Gerald Reardon. The plaintiff further objects to portions of the report of the defendant’s expert, Dr. DianneMacDonald, and seeks to have those portions redacted from the report. The defendant objects to portions of the plaintiff’s expert, Dr.Barabara Ross, and seeks redaction. The motion proceeded by way of written and oral submissions. Background [2] The plaintiff, Gerald Trevor Lees, commenced an action against the defendant, Robert Casorso, in 2007.

It alleges thedefendant’s dog knocked the plaintiff down from behind while attending the defendant’s property in the Province of Alberta, causingserious injuries. The matter is scheduled for trial in January 2013. It was previously determined the old Civil Procedure Rules regardingexpert reports and evidence would apply. [3] It appears causation and credibility will be substantial issues at trial. Based on written and oral submissions there is a disputeas to whether the incident with the dog even occurred, given the presence of the defendant at the time.

A further issue is whether theplaintiff’s symptoms result from the alleged dog incident or relate to pre-existing problems from the plaintiff’s work as a truck driver. [4] There will be extensive expert evidence with reports filed, including specialities of pain management, psychology,psychiatry, physiatry, neurology and orthopaedics. Analysis [5] The parties agree the criteria for consideration of admissibility of expert evidence is set out in R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, where the court stated: 17 Admission of expert evidence depends on the application of the following criteria: (

a) relevance; (

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionary rule; (

d) a properly qualified expert. ... [6] The court describes the cost-benefit analysis of admitting expert reports and the risk that expert evidence will cause the trierof fact to abdicate its role: 22 Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to bedecided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that doesnot end the inquiry. This merely determines the logical relevance of the evidence.

Other considerations enter into the decision as toadmissibility. This further inquiry may be described as a cost-benefit analysis, that is “whether its value is worth what it costs.” See McCormick on Evidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms ofits impact on the trial process.

Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value isoverborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it ismisleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequentlyconsidered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as ageneral exclusionary rule (see R. v. Morris, (SCC), [1983] 2 S.C.R. 190).

Whether it is treated as an aspect of relevanceor an exclusionary rule, the effect is the same. The reliability versus effect factor has special significance in assessing the admissibilityof expert evidence.

23 There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the judge does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves... the court noted similar concerns in respect to necessity component: 28 There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact.

Too liberal an approach could result in a trial’s becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept. Sopinka J. stated that a trial judge must guard against these dangers by acting as a gatekeeper. He also endorsed the principle that special scrutiny is required as expert evidence approaches an ultimate issue in dispute. At paragraph 29, he stated as follows: 29 These concerns were the basis of the rule which excluded expert evidence in respect of the ultimate issue.

Although the rule is no longer of general application, the concerns underlying it remain. In light of these concerns, the criteria of relevance and necessity are applied strictly, on occasion, to exclude expert evidence as to an ultimate issue...

This reasoning was elaborated upon in The Law of Evidence in Canada , 3 rd ed. (Markham: LexisNexis Canada Inc. 2009) [ The Law of Evidence in Canada ] as follows: 12.157 In the final analysis, the closer the experts’ testimony approaches an opinion on the ultimate issue, the stricter the courts will apply the requirements of reliability and necessity before admitting such evidence.

This is so because the evidence then begins to overlap not only the fact-finding function of the court but the legal analysis that must be applied to the facts in rendering the ultimate decision. 12.158 It is now generally said that if expert testimony is rejected it is excluded not because of any “ultimate issue” doctrine, but because such evidence is superfluous and the court can just as readily draw the necessary inference without any assistance from an expert or alternatively, the trial judge may give an appropriate instruction to the jury.

However, trial judges as gatekeepers must be alert to the extent of the expert’s influence over juries, especially if the opinion deals with a fundamental issue that is within the province of the jury. Dr. Reardon [ 7 ] The plaintiff submits the report of Dr. Reardon, orthopaedic surgeon, offends old Civil Procedure Rule 31.08, in that it offers no opinion within the area of his expertise. The plaintiff submits Dr. Reardon ’ s statement that, “ the diagnosis is elusive, ” amounts to giving no diagnosis and therefore has no probative value.

Further, his conclusion of finding, “ no objective basis ” for the plaintiff ’ s complaints of pain without considering subjective pain or chronic pain syndrome addressed in his reviewed reports, exhibit a bias toward the plaintiff from which he would suffer a prejudice. [ 8 ] Dr. Reardon was retained by the defendant to conduct an Independent Medical Examination of the plaintiff. His report indicates that in addition to an interview and physical examination, he reviewed multiple medical reports and hospital records.

He states that his opinion is based on his experience and expertise in musculoskeletal matters. [ 9 ] Following a review of the medical history, Dr. Reardon stated he was unable to examine the plaintiff properly. He states:

His lumbar range of motion could not be determined. Mr. Lees stated that he could not move because of his pain. He tended to stand with his trunk in a flexed position tilted to the left side. Attempts to examine him lying in a supine position were very difficult. He had zero straight leg raising. It was impossible to check his motor power. He exhibited severe weakness in all muscle groups of both his legs. Attempts to examine him were met with a marked shaking of his right leg. It was impossible to assess sensory deficit and also to assess reflex activity. Mr.

Lees was very agitated throughout the examination and as mentioned stood for most of the time. He could not be examined properly. ... ...At this time I can see no obvious cause for his severe complaints. As noted, I have never seen such a presentation in 29 years of examining many patients with severe lower back issues. One would expect that given the magnitude of Mr. Lees’ symptoms, there should be some objective findings which would help to explain his situation. [ 10 ] As indicated, causation is an ultimate issue at trial. There will be extensive expert evidence given regarding many specialities.

These opinions expressing medical findings would, no doubt, be of assistance to the court in relation to causation. Dr. Reardon ’ s opinion that a diagnosis is objectively allusive, is based on factual findings including the inability to examine or diagnose the plaintiff given the severity of his complaints. Dr. Reardon referred to a report from Dr.

Loane, a physical medicine and rehabilation specialist, who suspected complex regional pain syndrome but could not conclude the diagnosis due to the plaintiff ’ s severe chronic pain behaviour and use of narcotic medication. [ 11 ] Given the ultimate issues at trial, I find Dr. Reardon ’ s report meets the threshold tests of relevance and necessity. The report is grounded on fact and expresses an opinion. There is no indication of lack of objectivity as stated by the plaintiff. The weight given to the report will be considered in light of all evidence produced at trial, including cross-examination of Dr. Reardon.

As a result the report is admissible. Dr. Ross [ 12 ] Dr. Ross, psychiatrist, was retained by the plaintiff to conduct an Independent Medical Evaluation. Dr. Ross was also provided with various medical reports. In addition, she was provided with the Transcript of Discovery Evidence of the plaintiff ’ s family physician, Dr. Kwasnick, where she was questioned extensively on the issue of the origin of the symptoms and absence of an entry relating to the alleged dog incident as part of obtaining the plaintiff ’ s history at the time of his initial visit. In her report, Dr.

Ross diagnosed complex regional pain syndrome. As indicated, the defendant objects to the portion of her report providing an opinion as to origin where she opines that she has no doubt about the story of the dog knocking the plaintiff down. The defendant submits that opinion goes beyond Dr. Ross ’ expertise and is inappropriately based on credibility assessments and fact-finding. [ 13 ] Dr. Ross States: Opinion: In my opinion, Mr. Lees has developed a chronic neuropathic pain condition called complex regional pain syndrome . In my opinion, this is a direct result of the fall that he experienced on March 4, 2007.

The clinical evidence re the possibility/probability that the injury that he sustained would put him at risk of developing a chronic pain syndrome began within the first 24 hours post injury. Subsequently, he has also developed a major depression. I understand that some question has been raised as to whether he was actually knocked down by a dog or not, or perhaps even that his

back pain started some time before March 4, 20007 (sic). When I did the interview with him, I had not been aware that those issues had been raised. It is part of routine practice when doing any clinical assessment, but especially for an independent medical review to play (sic) close attention to plausibility and consistency. Consistency relates to consistency of the interview; consistency with the other medical records; and consistency with known clinical parameters. Based on this type of comprehensive assessment, I had no doubt the story of the dog knocking him down.

This is consistently recorded in the records of all of the clinicians whom he has encountered in dealing with this matter. The only glaring lack is in the medical record of his family physician re the first visit for this, which was on March 20, 2007. Based on the information that was available to me for review, this would appear to (sic) more likely due to the record- keeping style of this particular physician, rather than having been a result of lack of disclosure at this time by Mr. Lees.

I note that there was a clinical encounter ten days later (March 30, 2007) with a chiropractor, where the issue of the dog is clearly recorded. ... Mr. Lees experienced an acute event on the morning of March 4, 2007 (a fall)... [ 14 ] Proof of the occurrence of the alleged dog incident is an ultimate issue at trial. Whether the plaintiff attributed his symptoms to the dog incident or to his previous work as a truck driver upon his initial visit to his family doctor is relevant in these proceedings. These are factual matters for the court to decide based on all relevant evidence.

There is nothing technical or scientific in the records and information reviewed by Dr. Ross that requires the assistance of this expert for the court to properly assess the evidence and form conclusions. For the expert to opine on this issue is both unnecessary and inappropriate. As a result, this opinion portion of the report is inadmissible and shall be redacted. Dr. MacDonald [ 15 ] Regarding the report of Dr. MacDonald, psychiatrist, the plaintiff objects to the inclusion of references to Dr. Reardon ’ comments. The plaintiff further objects to Dr.

MacDonald ’ s comments regarding the origin of symptoms and complaints by the plaintiff. Dr. MacDonald referenced the differing versions of the alleged incident obtained from records provided to her. Although Dr. MacDonald does not opine on the different positions taken by the parties regarding the alleged incident, the plaintiff submits Dr. MacDonald portrays the information in a manner favourable to the defendant. [ 16 ] Dr. MacDonald was retained by the defendant to provide an Independent Medical Examination (psychiatry). The plaintiff ’ s objection to references to Dr.

Reardon contained in the report is dismissed for reasons given. The plaintiff objects to the following comment: With regard to the origin of current symptoms or complaints - Mr. Lees attributes his injury and subsequent chronic pain syndrome to being knocked down by Mr. Casorso’s dog in March 2007. This incident, as far as I am able to ascertain by reviewing all the records available to me and interview with Mr. Lees, had no objective witnesses. Mr. Lees stated that Mr. Casorso was sitting in his truck looking at him when Mr. Lees fell to the ground. Mr.

Casorso denies these allegations. [ 17 ] Initially the plaintiff also objected to a portion of Dr. MacDonald ’ s report containing a history given by the plaintiff. This objection was withdrawn at the time of the hearing of the motion, with the exception of one sentence. The plaintiff objects to the following comment by Dr.

MacDonald when obtaining his history: He stated that the bouncy truck notation referred to vehicles owned by his first employer. [ 18 ] This notation reference relates to notes made by his family physician in her patient file notes during his first doctor ’ s visit relative to this action. [ 19 ] There is no merit to the plaintiff ’ s objection to Dr. MacDonald ’ s comments on origin of the plaintiff ’ s symptoms and complaints. Unlike Dr.

Ross, she does not form an opinion on the origin of symptoms in the face of conflicting positions of the parties after reviewing the documentation provided to her and her interview with the plaintiff.

[ 20 ] Further, Dr. MacDonald ’ s reference to the plaintiff ’ s answer to her inquiry about the “ bouncy truck ” entry in Dr. Dr. Kwasnick ’ s initial interview notes does not relate to speculation as submitted by the plaintiff. The plaintiff ’ s reported comment is part of the lengthy history obtained by Dr. MacDonald. She does not speculate or provide an opinion with respect to this comment. [ 21 ] In conclusion, the plaintiff ’ s motion regarding the admissibility of Dr. Reardon ’ s report and portions of Dr. MacDonald ’ s report is dismissed. The defendant ’ s motion to exclude a portion of Dr.

Ross ’ report is allowed. The portion of Dr. Ross ’ report expressing opinion on the occurrence of the alleged dog incident is redacted from the report. [ 22 ] The defendant is entitled to costs. As the matter was heard by teleconference, I award costs in the amount of $500.00 in any event of the cause payable at the end of the proceeding. J.